Changes to Practice Notes

Chapter 1Ethics and Professional Conduct

§ 1.6Texas Lawyer’s Creed

This section has been renumbered.

§ 1.7Texas Code of Ethics and Professional Responsibility for Paralegals

This section has been renumbered.

§ 1.8American Bar Association’s Model Rules of Professional Conduct

This section has been renumbered.

§ 1.9The ACTEC Commentaries

This section has been renumbered.

§ 1.12Responsibility to Clients with Diminished Capacity

This section has been added and subsequent sections have been renumbered.

This new section addresses disciplinary rules addressing clients with diminished capacity and the new rule 1.16.

§ 1.14:1Conflicts between Interests of Attorney and Client

Added discussion of Disciplinary Rule 6.05 and the narrow exception to the conflicts rules in circumstances where a lawyer provides limited advice and brief assistance on a pro bono basis.

§ 1.15Confidentiality

Revised section to reflect amended disciplinary rules regarding confidentiality.

§ 1.17Advertising

Revised section to reflect amended disciplinary rules regarding advertising.

§ 1.20Duty to Report Professional Misconduct

Revised section to reflect updated Disciplinary Rule 8.03 relating to reporting professional misconduct.

§ 1.21Peer Assistance Program Alternative; Texas Lawyers’ Assistance Program

Updated section to add discussion of the peer assistance program alternative.

§ 1.39Standard of Care for Attorney Ad Litem

The discussion on standard of care has been updated to reflect new Disciplinary Rule 1.16.

Chapter 2Temporary Guardianships and Other Emergency Relief

§ 2.3Jurisdiction and Venue

This section has been added and subsequent sections in chapter 2’s part I have been renumbered.

This new section discusses jurisdiction and venue.

§ 2.5Preparing and Filing Application and Order

This section has been updated to expand the discussion of the role of the attorney ad litem.

§ 2.5:3Notice

The discussion on personal service has been expanded.

§ 2.5:4Hearing

This section was revised to note there is no right to a jury trial in a temporary guardianship proceeding.

§ 2.8Motion to Dismiss Temporary Guardianship

This section was revised to discuss the court’s ability to remove the temporary guardian in certain cases.

§ 2.11Payment of Fees

This section has been added and subsequent sections in chapter 2’s part I have been renumbered.

This new section discusses payment of fees to the temporary guardian.

Chapter 3Alternatives to Guardianship and Preguardianship Planning

§ 3.17: 2In Hospital Do-not-Resuscitate Order

This section was updated to expand the discussion of enforcement of the in-hospital DNR.

§ 3.23Payment of Claims without Guardianship

This section was revised to discuss withdrawal of funds by a nonresident guardian.

§ 3.34Visitation Rights: Designation of Essential Caregiver

This section has been added to discuss a new provision for the designation of a caregiver in a long-term health-care facility.

3.35Mediation of Family Settlement Agreements

This section was renumbered and the discussion on meditation has been expanded to discuss mediation of incapacity.

Chapter 4Creating Guardianships

§ 4.12Persons Disqualified to Serve as Guardian

This section has been updated to reflect the current statute relating to persons disqualified to serve.

§ 4.16Application for Appointment of Guardian

This section was revised to reflect that the application must contain certain identifying information.

§ 4.19Transfer of Guardianship to Another County

This section has been updated to expand the discussion on transfer of a guardianship.

§ 4.21Notice and Citation

This section was updated to include discussion of the impact of failing to properly notice as required by Tex. Est. Code § 1051.104(c).

§ 4.21:2Personal Service

This section was revised to add discussion of case law discussing technical defects in service.

§ 4.27Order Appointing Guardian

This section was updated to reflect the current statutory requirements for the contents of an order appointing guardian.

§ 4.29:6Reporting Financial Exploitation of Vulnerable Adults

This section has been expanded to include discussion of certain available safeguards relating to financial exploitation of a minor.

Chapter 5Guardianships of Veterans and the VA Fiduciary Program

§ 5.2Authority

The practice pointer has been revised to elaborate on the impact of the VA fiduciary program on state guardianship proceedings.

§ 5.3Guardianship/VA Conflicts

This section has been moved from the end of chapter 5’s practice notes to here, and subsequent sections through 5.13 have been renumbered.

§ 5. 7Designation of VA Fiduciary

This section has been revised to discuss the appointment of a VA fiduciary when a state court guardianship exists.

§ 5.8VA Fiduciary Accountings

This section has been revised to note an annual accounting must be submitted to the VA on a prescribed form.

§ 5.9VA Fiduciary Fees

This section has been revised to discuss the 5-percent Estates Code safe harbor fee in relation to guardian fees paid from the VA.

§ 5.13Exemption from Guardianship Proceeding Fees for Certain Military Servicemembers

This section has been deleted.

§ 5.15Required Notification to VA by Guardian

This section has been revised to note that legal matters involving a fiduciary are handled by the Hub office in Lincoln.

Chapter 6Guardians and Attorneys Ad Litem

§ 6.3Ethical Considerations

This section has been updated to discuss the amended disciplinary rules relating to clients with diminished capacity.

§ 6.4:2Appointment

This section was revised to reflect the updated certification requirements for attorneys in guardianship proceedings.

§ 6.4:3Required Disclosures

This section was added to discuss the new disclosure rules, and subsequent sections have been renumbered.

§ 6.5:3Required Disclosures

This section was added to discuss the new disclosure rules, and subsequent sections have been renumbered.

§ 6.8:3Factors in Determining Reasonableness

The discussion on reasonableness of fees has been moved to chapter 10.

§ 6.8:5Billing for Additional Legal Professionals and Retaining Specialized Counsel

Expanded discussion of work done by paralegal that can be recovered as an element of attorney’s fees.

§ 6.8:6Source of Payment

This section was updated to expand the discussion on payment of costs.

§ 6.9.2Financial Abuse of Elderly Individual

This section was added to discuss the offense of financial abuse of an elderly person.

§ 6.9.3Securing Execution of Document by Fraud or Deception

This section was added to discuss the offense of fraudulently securing the execution of a document.

§ 6.9.4Continuous Sexual Abuse of Disabled Person

This section was added to discuss the applicability of Tex. Penal Code § 21.02 to disabled individuals.

§ 6.9.5Access to Financial Records by Guardianship Abuse, Fraud, and Exploitation Program

This section was added to discuss the ability of the Office of Court Administration to seek access to records relating to a ward or a ward’s estate.

§ 6.9.6Financial Hold on Account of Vulnerable Adult Upon Suspicion of Financial Exploitation

This section was added to discuss the option of placing a hold on an account.

Chapter 8Administration

§ 8.4Payment of Additional Expenses

Section 8.4:1 has been incorporated into this section, and previous sections 8.4:2 and 8.4:3 have been renumbered accordingly.

§ 8.5Reimbursement of Expenditures Provided by Guardian of Estate

Section 8.5:1 has been incorporated into this section, and previous sections 8.5:2 through 8.5:4 have been renumbered accordingly.

§ 8.21        Contract for Goods or Services

Sections 8.21:1 and 8.21:2 have been incorporated into this section, and previous sections 8.21:3 through 8.21:5 have been renumbered accordingly.

§ 8.22        Contract to Employ Attorney

Section 8.22:1 has been incorporated into this section, and previous sections 8.22:2 and 8.22:3 have been renumbered accordingly.

§ 8.31:2Public Auction

This section has been updated to reflect the current statutory language relating to sale of personal property.

§ 8.32:4Order of Sale

This section has been updated to reflect the current statutory language relating to sale of personal property.

§ 8.32:5Report of Sale

This section has been updated to reflect the current statutory language relating to sale of personal property.

§ 8.32:6Approval of Sale

This section has been updated to reflect the current statutory language relating to sale of personal property.

§ 8.32:7Delivery of Deed or Lien Documents

This section has been updated to reflect the current statutory language relating to sale of personal property.

§ 8.32:8Bond on Sale

This section has been updated to reflect the current statutory language relating to sale of personal property.

§ 8:42:2Public Auction

This section has been updated to reflect the current statutory language relating to sale of personal property.

§§ 8.55:2–8.55:4

These sections have been deleted.

§ 8.56Retention of Assets

This section has been renumbered from section 8.55:1, and subsequent sections in chapter 8’s part VI have been renumbered.

§ 8.92Guardian of Person’s Duty to Inform Court

This section was updated to include discussion of the requirements for placing a ward in a more restrictive facility.

Chapter 10Litigation

§ 10.1Scope of Chapter

This section was revised to reflect the new certification requirements for any attorney in a guardianship proceeding.

§ 10.2:1Permanent Guardianship

This section has been revised to add discussion of case law addressing technical defects in service.

§ 10.2:2Temporary Guardianship

This section was updated to expand the discussion on citation requirements and to include discussion on closing the temporary guardianship.

§ 10.4:7Right to Request Jury Trial

This section was revised to include discussion on jury selection.

§ 10.4:8Guardianship Proceedings That May Be Tried to Jury

This section was revised to expand the discussion on waiving the right to a jury trial.

§ 10.8:5Discovery Generally

This section was revised to reflect the current discovery rules relating to disclosure.

§ 10.10Attorney’s Fees

This section was updated to reflect revisions to the Civil Practice and Remedies code regarding from whom attorney’s fees can be recovered.

§ 10.10:1Requesting Attorney’s Fees

This section was updated to expand the discussion on good faith and just cause.

§ 10.11:2Requesting Mediation

This section was revised to include discussion of mediation for a contested guardianship proceeding.

§ 10.11:3Choosing Mediator

This section was revised to discuss the Office of Court Administration’s guardianship mediation training.

Chapter 11 Guardianship Management Trusts

This chapter has been reorganized and updated throughout.

Chapter 12Public Benefits

This chapter was updated throughout to reflect current qualifying criteria and benefit amounts.

§ 12.3:2Medicaid

This section was revised to discuss the treatment of retirement accounts and COVID 19 stimulus payments and Medicaid eligibility.

Chapter 13Foreign Guardianships

§ 13.2:4Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA)

This section has been added to include discussion of additional cases interpreting the UAGPPJA.

§ 13.3:3Transfers to and from UAGPPJA States

This section has been revised to include a comment on elder abuse and the UAGPPJA.

Chapter 15Compliance, Show-Cause Order, Removal, and Reinstatement

§ 15.2:12Failure to File Final Account and No Complaint Filed

This section has been added to discuss when a guardianship may be removed from the docket without a final account or appointment of a successor guardian.

§ 15.4:2Removal with Notice

This section has been revised to discuss removal of an incapacitated guardian.

Changes to Forms

Chapter 2Temporary Guardianships and Other Emergency Relief

Form 2-1Application for Appointment of Temporary Guardian of [Person/Estate/Person and Estate]

Paragraph 8 was added for advising the court of a need for an interpreter for the ward, and previous paragraph 8 was renumbered.

Chapter 3Alternatives to Guardianship and Preguardianship Planning

Form 3-2Statutory Durable Power of Attorney

An entry was added for granting or denying an agent the authority to create or change rights of survivorship.

Form 3-14Application to Withdraw Funds under Texas Estates Code Chapter 1355

Paragraph 5 was adding for addressing extraordinary expenses, and subsequent paragraphs were renumbered.

Chapter 6Guardians and Attorneys Ad Litem

Form 6-5Rule 11 Agreement Regarding Initial Disclosures

This form has been added, and subsequent forms were renumbered.

Chapter 8Administration

Form 8-31Annual Account [Complex]

This form was updated to accommodate the option of including a guardian compensation request.

Form 8-33Annual Account [Simple]

This form was updated to accommodate the option of including a guardian compensation request.

Form 8-35Annual Report on Location, Condition, and Well-Being of Ward

This form was updated to accommodate the option of a guardian making an unsworn declaration.

Chapter 9Modification, Restoration, and Successor Guardians

Form 9-1Application to Modify Guardianship

This form was updated to allow for applying to either limit or expand the nature of the guardianship.

Form 9-2Order Modifying Guardianship

This form was updated to allow for an order that either limits or expands the nature of the guardianship.

Form 9-4Order for Partial Restoration of Ward

This form was updated to allow also ordering payment of fees and expenses.

Form 9-6Order Restoring Capacity and Terminating Guardianship

This form was updated to allow also ordering payment of fees and expenses.

Chapter 10Litigation

Form 10-10Requests for Disclosure

This form was deleted.

Form 10-18Agreed Motion for Mediation in Temporary Guardianship Pending Contest

This form was added.

Form 10-19Agreed Order for Mediation in Temporary Guardianship Pending Contest

This form was added.

Chapter 11Guardianship Management Trusts

Form 11-3Special Needs Trust Termination Provisions

This form was deleted.

Form 11-8Application for Appointment of Successor Trustee of Management Trust

A paragraph was added for describing the applicant’s interest in the management trust and including an address for service of citation.

Separate paragraphs are now provided for detailing the guardian’s address, service of citation, and appointment as permanent guardian and for referencing the prior trustee’s statement of resignation.

Additional language was included to reference the proposed successor trustee’s statement.

Form 11-13Final Account of Trustee of Management Trust

This form was updated to provide more details on the establishment of the original management trust, on the property being administered, on the trustee’s fees, and on claims against the trust during the accounting period.

A new paragraph was added referencing the taxable income from the original management trust.

Chapter 15Compliance, Show-Cause Order, Removal, and Reinstatement

Form 15-1Application for Turnover Order

This form was added.

Form 15-2Turnover Order

This form was added.

Form 15-3Motion to Remove Guardian

This form was added.

Form 15-4Order Removing Guardian and Appointing Successor Guardian of the [Person/Estate/Person and Estate]

This form was added.